Martin
Monica filed a quo warranto application for the
removal of Laurie Smith, the Sheriff of Santa Clara
County.[1] He claims that Sheriff Smith unlawfully
took office and continues to serve as Sheriff despite
residing outside of Santa Clara County.[2] When the Attorney
General of California refused to pursue quo warranto
proceedings to oust Sheriff Smith at Mr. Monica's behest,
Mr. Monica sued the Attorney General and the State of
California.[3] They move to dismiss the complaint under
Federal Rule of Civil Procedure Rule 12(b)(6).[4] The court holds
that Mr. Monica does not state plausible claims where relief
can be granted because his claims are barred by the Eleventh
Amendment and the applicable statutes of limitations. The
court grants the motion to dismiss the complaint without
leave to amend.

In a
cover letter dated January 11, 2014, Mr. Monica purported to
enclose for the Attorney General his application for consent
to pursue a quo warranto action, including a
proposed complaint, verified statement of facts, memorandum
of points and authorities, and notice to the proposed
defendant.[7] He attaches the documents he submitted to
his present complaint.[8] These documents include a complaint with
an unsigned verification, [9] a statement of facts without
verification or signature, [10] a memorandum of points and
authorities, [11] and an unsigned
declaration[12] to which he attached various public
records, online directory search results, police reports,
news articles, real estate records, and election filings that
he believes show that Sheriff Smith resides in South Lake
Tahoe and not in Santa Clara County.[13]

The
Office of the Attorney General sent Mr. Monica a letter
stating that it received his materials “[o]n or about
February 3, 2014, ” identifying deficiencies in the
documents he submitted, suggesting that he seek the
assistance of an attorney, and stating that it “will
reconsider the matter if these deficiencies are corrected,
and [the application] is resubmitted over the signature of an
attorney.”[14] The letter stated that Mr. Monica's
application was deficient because his complaint sought to
change venue to San Francisco County without good cause and
asked to appoint him as Sheriff in Sheriff Smith's place.
His complaint also contained irrelevant allegations about
wrongdoing by Sheriff Smith, her spouse, and her daughter,
including allegations relating to improper tax exemptions and
misconduct in office that were beyond the scope of Sheriff
Smith's domicile and residence.[15]

Mr.
Monica does not allege he submitted a revised application,
but he claims the defendants wrongfully rejected his request
to pursue a quo warranto action because his evidence
shows that Sheriff Smith unlawfully holds public office
despite residing in South Lake Tahoe and not Santa Clara
County.[16]

A
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief” to give the defendant “fair notice”
of what the claims are and the grounds upon which they rest.
See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint does not
need detailed factual allegations, but “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitlement to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a claim for relief above
the speculative level . . . .” Id. (internal
citations omitted).

To
survive a motion to dismiss, a complaint must contain
sufficient factual allegations, accepted as true,
“‘to state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 557).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of “entitlement to
relief.”'” Id. (quoting
Twombly, 550 U.S. at 557).

If a
court dismisses a complaint, it should give leave to amend
unless the “the pleading could not possibly be cured by
the allegation of other facts.” Cook, Perkiss &
Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d
242, 247 (9th Cir. 1990).

ANALYSIS

The
defendants advance three arguments in support of their motion
to dismiss. First, they argue that Eleventh Amendment
immunity precludes Mr. Monica's claims against the State
of California.[18] Second, they argue that Mr. Monica fails
to plead plausible claims.[19] Finally, they argue that the
applicable statutes of limitations bar Mr. Monica's
claims.[20]

1.
Eleventh Amendment Immunity

The
first issue is whether the Eleventh Amendment bars Mr.
Monica's claims against the State of California. It does.
The defendants point out that the Eleventh Amendment bars a
lawsuit against a state or its instrumentalities absent the
state's consent or abrogation of immunity by
Congress.[21]Papasan v. Allain, 478 U.S.
265, 276-77 (1986). “This bar exists whether the relief
sought is legal or equitable.” Id. Section
1983 did not abrogate a state's Eleventh Amendment
immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979).
California has not waived its immunity generally for Section
1983 claims like the ones here. Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241 (1985).

Although
the defendants do not specifically address Mr. Monica's
claim under Section 1981, the Ninth Circuit has held that
states are immune from suit (absent waiver) and that, in
fact, “§ 1981 does not contain a cause of action
against states.” Pittman v. Oregon Emp't
Dep't, 509 F.3d 1065, 1071, 1074 (9th Cir. 2007);
accord Binum v. Warner, 314 F. App'x 914, 914-15
(9th Cir. 2008) (plaintiff could not sue state agency or its
official under Section 1981). Mr. Monica cannot assert a
Section 1981 claim against the State of California.

As for
the Attorney General in his official capacity, Ex parte
Young allows some lawsuits for prospective declaratory
and injunctive relief against state officers sued in their
official capacities to enjoin an ongoing violation of federal
law. See209 U.S. 123, 156-57 (1908). While it is
not obvious that the injunctive relief Mr. Monica seeks is
prospective, Mr. Monica raises the Ex parte Young
exception as grounds to sue Attorney General Xavier
Becerra.[22] The Ex parte Young exception
removes official capacity from a state official so they can
face the “consequences of [their] individual
conduct.” See 209 U.S. at 160. But Mr.
Becerra's individual conduct has no relation to the
quo warranto application filed by Mr. Monica because
the decision to not pursue the proceedings was made well
before Mr. Becerra was elected to office. Furthermore, Mr.
Monica has not identified any behavior of Mr. Becerra that
would qualify for this exception.

The
Eleventh Amendment bars Mr. Monica's Section 1983 claims
against the State of California.

2.
Plausibility of Claims

2.1
Section 1983 Claims

The
second issue is whether Mr. Monica states plausible Section
1983 claims. He does not. To state a claim under 42 U.S.C.
§ 1983, a plaintiff must allege two elements: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the violation was committed
by a person acting under the color of state law. See West
v. Atkins, 487 U.S. 42, 48 (1988). The focus of the
defendants' motion, and thus the analysis here, is
whether Mr. Monica alleges a plausible violation of his
constitutional rights or federal law.

2.1.1
Fourteenth Amendment

Mr.
Monica's first two claims for relief are for violations
of his right to equal protection and procedural due process
under the Fourteenth Amendment, [23] which states in Section 1
that:

All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

2.1.1.1
Equal Protection

The
issue here is whether Mr. Monica plausibly claims a violation
of the equal protection clause of the Fourteenth Amendment.
He does not. “The equal protection clause forbids the
establishment of laws which arbitrarily and unreasonably
create dissimilar classifications of individuals when,
looking to the purpose of those laws, such individuals are
similarly situated.” Williams v. Field, 416
F.2d 483, 486 (9th Cir. 1969). Mr. Monica does not claim the
statute governing quo warranto proceedings is
discriminatory on its face. See Cal. Civ. Proc. Code
§ 803.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Here,
Mr. Monica pleads only bare assertions and conclusory
allegations that he was denied equal
protection.[24] He does not allege facts to support
those allegations. For example, Mr. Monica does not allege
that the defendants intentionally treated him differently
when he requested that the Attorney General pursue a quo
warranto action or that he was treated differently at
all. The complaint is also silent as to any discriminatory
intent. Consequently, ...

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